Not too many movies are made or books written about settling a personal injury case. The drama is in trials. And for good reason. From an eloquent opening statement, to the witness who says something completely unexpected, to eye-pleasing exhibits, sizzling cross-examinations, the black-robed eminence on the bench, impassioned closing arguments, and the heart-thumping silent moment before the jury’s verdict is delivered – good trials are great theatre. For all of our culture’s awareness of civil trials by jury, the great majority of personal injury cases – more than 90% - settle before a trial ever begins. It’s important, therefore, to understand, how personal injury cases are settled; this article discusses only the settlement of cases involving death or severe personal injury.

A serious personal injury or wrongful death case rarely settles until all the paper discovery has been completed, and all the depositions taken. There are exceptions. In cases where the defendant’s liability is painfully obvious and the damage to the plaintiff serious, the defendant’s insurer may not want to risk an angry jury awarding a large verdict. Most of the time, however, the insurance company does not want to pay a large settlement unless it has enough information to conclude that trial will be too dangerous. Settlement negotiations usually begin in earnest when a trial date has been set. If a case is going to settle, it is every one’s interest to conclude the settlement before tens of thousands of dollars are spent on trial preparation.

Typically, plaintiff’s lawyer will write a formal settlement demand to the insurance company adjuster, with a copy sent to defense counsel. Although lawyer’s differ in their practices, I favor a settlement demand that is in the form of a settlement brochure. The settlement brochure will include a cogent narrative of the case in a light favorable to the plaintiff, and will include attachments such as key transcript pages from the depositions of witnesses, important medical records, photographs, and perhaps one or more reports from experts. In cases involving life-altering injuries, a day-in-the life video or a settlement video, may be included. I will write about these videos in an upcoming article on this web site. If they are available, the settlement brochure may also include examples of settlements and verdicts in other, similar cases. The brochure concludes with a demand for a specified amount of money, sometimes accompanied by a statement of plaintiff’s willingness to mediate the case.

I prefer a comprehensive settlement brochure to a simple demand letter, because the best way to obtain a good settlement is to convince the insurance company of your willingness to go to trial and your ability to present a well-prepared and compelling case to a jury. Once the demand has been made, settlement usually occurs in one of several possible ways. The most common means of settlement is simply a series of back and forth telephone conversations between plaintiff’s counsel and the insurance adjuster, or sometimes, the defense counsel. After a feeling out period, the parties narrow their differences and, if the case is to settle, agree on a final amount. In other cases, in which the parties are too far apart to settle over the phone, but believe their differences can be overcome, a mediation with a professional mediator is undertaken. Some insurance adjusters like the mediation process, while others expect that they and an experienced plaintiff’s attorney, do not need a mediator’s help. Finally, not every personal injury case that goes to trial, proceeds to a jury verdict. Sometimes one side or the other needs to see how the other side’s case actually looks before a jury, before they can see their way to compromising and settling the case.